484 F.

2d 38

UNITED STATES of America, Appellee,

v.
Eric Marshall NAGLER, Appellant.
No. 808, Docket 73-1194.

United States Court of Appeals,

Second Circuit.
Argued April 26, 1973.
Decided May 17, 1973.

Donald L. Doernberg, New York City (Jeremiah S. Gutman, Levy,

Gutman, Goldberg & Kaplan, New York City, of counsel), for appellant.
Thomas R. Maher, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty.,
E.D.N.Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of
counsel), for appellee.
Before BREITENSTEIN, * KAUFMAN and MANSFIELD, Circuit
Judges.
MANSFIELD, Circuit Judge:

Eric Marshall Nagler appeals from a judgment of conviction for failure to

report for induction into the armed forces in violation of 50 U.S.C. App. Sec.
462(a), entered after a trial in the Eastern District of New York before Judge
Anthony J. Travia, sitting without a jury. Appellant was sentenced to three
years imprisonment and was released on bail pending this appeal. The question
before us is whether the denial of appellant's claim for classification as a
conscientious objector to combatant and noncombatant training and service (IO status) and his consequent retention in a I-A classification resulted from a
denial of due process. We conclude that the Local Board did not provide
adequate reasons for its rejection of appellant's conscientious objection claim,
that appellant was thus subject to an invalid induction order, and that his
conviction based on that order must therefore be reversed.
The essential facts are undisputed. Appellant duly registered with Local Board

41 in Brooklyn, New York, on June 6, 1960. He was classified I-A on October

18, 1961, but on December 11, 1963, he was reclassified II-S until June 1964
because he had enrolled as a fulltime graduate student in psychology at Queens
College. On December 16, 1964, he was again classified I-A. After receiving
information five days later from Queens College that appellant was still
pursuing a graduate degree part-time, the Local Board reviewed his
classification on January 20, 1965, but concluded that the new information did
"not warrant reopening." On September 22, 1965, Nagler was continued in a IA classification, and on November 1 he was ordered to report November 12 for
an Armed Forces Physical Examination. He reported for the examination as
required,1 though he had in the interim, by letter dated November 5, 1965,
requested from his Local Board SSS Form 150, the Special Form for
Conscientious Objectors.

The Local Board received appellant's completed application for conscientious

objector status on November 22, 1965, along with seven letters in support of it.
The Government concedes that his application "made out a prima facie case for
reclassification as a conscientious objector."2 Appellant based his claim on
religious beliefs, including belief in a Supreme Being, which led him to "three
deeply felt guiding forces: nonviolence, respect for the individual, and
responsibility to the community." He noted his Jewish background, but stressed
"freedom of religion" and recorded his membership in the National Ethical
Youth Organization of the New York Ethical Culture Society and its Executive
Committee when he was in high school, as well as membership in the
Fellowship of Reconciliation, the Committee for a Sane Nuclear Policy, and the
New York Herpetological Society. He also stated that he was "opposed to all
war," that his conscience would not allow him to take part in killing, and that
"non-violence is always a possible alternative when nations are at odds" and
should be followed if at all possible in situations of individual attack, though if
there were no alternatives he allowed that he would in the final analysis fight
for his life. Appellant cited his brother, also a conscientious objector, as the one
person most influential in guiding him towards pacifism.

No action was taken by the Local Board on Nagler's claim until seven months
later, just after he wrote to them requesting permission to leave the United
States for a two-month period. On June 14, 1966, he received notification of a
discretionary interview before the Local Board, to be held on the following day,
June 15. Following his appearance, his claim for classification as a
conscientious objector was rejected by the Local Board and his request for a
permit to depart the country was denied. The Board's minutes of his appearance
and of its disposition include the following notations:

"Reg. appeared requests deferment on grounds of being a conscientious objector. . . .

5
21 Questions and Answers read and considered by the Board. . . . He stated he was
an atheist because he did not believe in the Jewish God or the Christian God.
Believes that killing is against civilization and that things should be handled by nonviolence. . . . Board finds this registrant to be less than sincere and statements were
found to be somewhat inconsistent i. e. re: belief in Supreme Being. Registrant does
not qualify for I-O Classification under the existing regulations."
6

Appellant asked the Board to reconsider its decision and to reopen his
classification, complaining that he had not been afforded sufficient time to
prepare for the interview. After a lengthy exchange of correspondence, he was
granted a personal appearance on September 13, 1966, but his claim was again
rejected and he was retained in a I-A classification. The Board's summary
stated the following relevant observations:

7
"Reg.
states he is of the Jewish Religion but does not attend any synagogue or
Temple. . . . about a year ago he joined the Fellowship of Reconciliation. . . .
Attended a Quakers meeting once and only listened. Reg. states that he would not
now call himself an atheist. He believes in a Supreme being that does not organize
religions but humanists. Basis of objection to war is that it is wrong to kill. . . . The
21 questions and answers read & considered by the Board. Reg. states his answers
are the same today. . . . Minutes of meeting dtd June 15, 1966 were considered &
same questions & answers received. Conscientious objector for religious reasons. . .
. Board finds that registrant to be less than sincere [sic] and statements made now are
inconsistent with statements made at prior hearing held on June 15, 1966. . . . Does
not warrant reopening 4-0."
8

Nagler appealed the Local Board's determination to the Appeal Board which,
pursuant to procedures then applicable, 50 U.S.C. App. Sec. 456(j) (1948) and
32 C.F.R. Sec. 626.25(a) (1948), sought an advisory recommendation from the
Department of Justice after it had reviewed the file and "tentatively"
determined that appellant was not eligible for a I-O classification. A Hearing
Officer from the Justice Department interviewed appellant on May 31, 1967,
concluded that he was sincere in his religious beliefs and conscientious
objection, and recommended that his conscientious objector claim be sustained.
In the formal reply to the Appeal Board, however, T. Oscar Smith, Chief of the
Justice Department's Conscientious Objector Section, relayed the
recommendation of the Department of Justice that the conscientious objection
claim not be sustained because (1) it was filed after appellant had been
classified I-A and ordered for his physical examination, (2) asserting the claim
at that late date was "not persuasive" of "deep and abiding beliefs held for a
long period of time," and (3) the inconsistencies cited by the Local Board could

be considered in its determination of appellant's sincerity.3

9

In accordance with Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.
Ed. 467 (1955), appellant was given an opportunity to and did respond to the
Justice Department's recommendation. In a 10-page letter to the Appeal Board
dated August 27, 1967, Nagler protested that he had informed his Local Board
at the earliest point when he had been fully convinced that he was a
conscientious objector and that even if he had not been called for a preinduction physical examination he would still have sent for the SSS Form 150
when he did. He disputed the Local Board's summary descriptions of what he
had said at his two appearances before them and their conclusion that he had
been inconsistent in his views regarding his belief in a Supreme Being.4

*****
10
*11* *Despite appellant's explanations, the Appeal Board unanimously sustained the
Local Board's I-A classification on October 9, 1967, without any statement of
reasons. Appellant was subsequently ordered to report for induction on November
13, 1967, and he failed to do so. He was indicted on May 13, 1969 and this
conviction followed.5
12

Judge Travia rejected appellant's argument that the Local Board's classification
of him as I-A was without a "basis in fact," Estep v. United States, 327 U. S.
114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and that the Appeal Board's
determination was invalid because that Board did not state its reasons for
affirming the Local Board's classification. The court accepted as a valid "basis
in fact" the Local Board's conclusion that appellant was "insincere" because of
inconsistent statements as to his religious views. Judge Travia also interpreted
the Appeal Board's determination as resting solely on the ground of insincerity,
since the Appeal Board tentatively rejected appellant's claim before it sought
the Justice Department recommendation and the judge construed the
Department's advice as relating solely to the question of appellant's sincerity.
On this interpretation Judge Travia concluded that the failure of the Appeal
Board to state the reasons for its determination did not affect the validity of the
induction order.

13

The legal parameters governing this appeal have been indicated by recent
rulings of the Supreme Court, Joseph v. United States, 405 U.S. 1006, 92 S.Ct.
1274, 31 L.Ed. 473 (1972), and Lenhard v. United States, 405 U.S. 1013, 92
S.Ct. 1296, 31 L.Ed.2d 477 (1973), which have been interpreted by this and
other circuits considering the issue as mandating reversal of a conviction upon
a record of the type here presented.6 It is now clear that when a registrant states

a prima facie claim for a conscientious objector classification, as concededly

appellant did here, his Local Board's failure to give reasons for denying his
claim precludes meaningful administrative review by the Appeal Board and
therefore invalidates a I-A classification following such denial. Accordingly a
conviction based on failure to respond to an induction order grounded on that
classification must be reversed. United States v. Stewart, 478 F.2d 106, 112 (2d
Cir. 1973); United States v. Holby, 477 F.2d 649, 656-657 (2d Cir. 1973).
Furthermore, since an Appeal Board need not restate the reasons for denying
the claim when it affirms the Local Board's determination, United States v. Orr,
474 F.2d 1365, 1369 (2d Cir. 1973), it "becomes all the more important that the
local board specify the facts forming the basis of its decision," United States v.
Stewart, supra at 112-113. We noted specifically in the Stewart case that the
requirement that reasons be furnished for rejecting the conscientious objector
claim "is not satisfied by a board's mere conclusory statements of insincerity.
The facts or factors relied upon by the board must be stated. United States ex
rel. Checkman v. Laird, 469 F.2d 773, 785 (2d Cir. 1972); see United States v.
Andersen, 447 F.2d 1063, 1065 (9th Cir. 1971)." Id.
14

Application of these principles here dictates reversal of Nagler's conviction.

After his first appearance before the Local Board on June 15, 1966, his claim
was rejected because he was found to be "less than sincere" and his "statements
were found to be somewhat inconsistent, i. e. re: belief in Supreme Being." The
conclusion of insincerity, standing alone, would not suffice to support the
Board's determination, United States v. Stewart, supra, 112. To the extent that
it is supplemented by a reference to Nagler's inconsistent statements regarding
his religious views, the Government has conceded that "in his reply to the
Smith letter Nagler appears to have fully answered and explained the alleged
inconsistencies, at least to the extent that even without crediting his version of
what transpired at his meetings with the Board, no reasonable person could
conclude that there was any necessary inconsistency in his religious views."7
(Emphasis supplied) Since the misunderstanding as to the nature of appellant's
belief in a Supreme Being was not based upon objective fact but rather upon
either an erroneous record of what he had said or upon a misconception by the
Board members of what he had described as his beliefs, the alleged
inconsistencies do not constitute a relevant "fact which casts doubt on the
veracity of the registrant," Witmer v. United States, 348 U.S. 375, 381-382, 75
S.Ct. 392, 396, 99 L.Ed. 428 (1955). Without a rational basis for finding
appellant's statements concerning his belief in a Supreme Being inconsistent,
the Local Board cannot either base its classification on the inconsistencies or
base its conclusion of insincerity on inference drawn from the supposed
inconsistencies. United States v. Anderson, supra, 447 F.2d at 1066-1067. Cf.
United States v. Corliss, 280 F.2d 808, 814 (2d Cir.), cert. denied, 364 U.S.

884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960); United States v. O'Rourke, 341
F.Supp. 622, 626 (S.D.N.Y.1972).
15

Nor do the minutes of appellant's second appearance before the Local Board, an
appearance as of right, provide a sufficient basis in fact to support the Board's
denial of his conscientious objector claim, as the Government now urges. The
Board concluded again that appellant was "less than sincere" and this time that
"statements made now are inconsistent with statements made at prior hearing
held on June 15, 1966." Obviously, if the inconsistencies refer to statements
concerning appellant's religious views, they gain no more basis through
repetition a second time. Adopting this view, the Government, erroneously
assuming that if it could show that there was a "basis in fact" for the decisions
of the Local and Appeal Boards no statement of the reasons actually relied upon
by those Boards was required,8 initially took the position upon this appeal that
the "inconsistencies," which it correctly interpreted as referring solely to "the
registrant's use of or the Board's understanding of the term 'atheist,"' were not
sufficiently substantial to uphold the Board's decision, stating:

16 government concedes that, without more, these alleged inconsistencies would

"The
appear insufficient upon which to predicate a finding of insincerity. Very simply
there is not enough in this record on this point.
17 the same time, however, the Government would suggest that, on this record it
"At
seems quite unlikely that these alleged inconsistencies played any substantial role, if
any at all, in influencing the Appeals Board and that there was other evidence, much
more strongly emphasized in the Smith letter. . . ."9
18

Notwithstanding the Supreme Court's decisions in Lenhard and Joseph and our
intervening decisions in Holby and Stewart, with which the Government was
first confronted after briefing the appeal, it nevertheless continues to urge other
"inconsistencies" which it has culled from the record in an effort to support the
Local Board's finding of insincerity. However, in view of our agreement with
the Government's initial interpretation of the Local Board's use of the term as
referring solely to the registrant's religious views we must reject any reasons
that were not articulated by the Local Board. Accordingly, we are left with that
Board's mere conclusion that a registrant is "less than sincere," which is
insufficient. United States v. Stewart, supra.

19

Nor can the Government gain any comfort from the Appeal Board's decision,
which sustained the Local Board's I-A classification on appeal without giving
any reason, conclusory or otherwise. If the Local Board has supported its
decision with a valid statement of reasons, a further statement by the Appeal

Board would be unnecessary. United States v. Orr, 474 F.2d 1365, 1369 (2d
Cir. 1973). But where, as here, the Local Board has failed to furnish such a
statement, that deficiency can not be cured by the Appeal Board, since the
Local Board, not having articulated any reasons which rest on a "basis in fact,"
may have acted upon invalid grounds. The Appeal Board, like ourselves has
been left to speculate as to what legitimate reasons, if any, the Local Board
might have found conclusive. The registrant, because of the Local Board's
silence, is deprived of a basic due process step, i. e., meaningful administrative
review, which is an essential element of the system and should be accorded to
all registrants.
20

In any event, the Appeal Board's decision is fatally deficient for the reason that
it failed to state any reason at all for its rejection of appellant's claim, thus
leaving us to speculate as to its grounds, just as we must speculate as to the
basis of the Local Board's decision. This deficiency cannot be remedied by
reference to the reasons suggested to the Appeal Board by the Chief of the
Justice Department's Conscientious Objector Section, to which the Appeal
Board looked for guidance. Some of these suggested reasons were plainly
insufficient. Although late crystallization and assertion of conscientious
objection may be viewed by a Board with suspicion, this factor is not
conclusive. The claim may nevertheless be found to have been asserted in good
faith. It cannot, therefore, automatically be rejected on such grounds. Ehlert v.
United States, 402 U.S. 99, 103-104, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971);
United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966); United States v. Gearey
II, 379 F.2d 915 (2d Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d
368 (1967); Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). And in any event the
Appeal Board may have made its determination in reliance on the unsupported
ground of inconsistent statements by Nagler as to his religious views, since this
appears to have been the basis of the Local Board's decision and the Justice
Department, in turn, stated that it could properly be considered. Since the
Appeal Board's decision may well have been based upon invalid grounds, its
decision could not in any event be upheld. Clay v. United States, 403 U.S. 698,
704, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971).

21

The judgment of the district court is reversed with directions that the indictment
be dismissed.

Of the United States Court of Appeals for the Tenth Circuit, sitting by
designation

Although Nagler submitted to the Armed Forces Physical Examination, he

refused to complete its Security Questionnaire (DD Form 98) on the ground
that it represented an "unwarranted invasion of [his] right to freedom of
association and belief."
2

Appellee's Brief 5. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13
L.Ed.2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26
L.Ed.2d 308 (1970); Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26
L.Ed.2d 362 (1970)

Mr. Smith's letter did set forth, among other things, the Hearing Officer's
recommendation and the fact that the Hearing Officer had reported "that the
registrant's early religious training was Jewish but that his beliefs are of a
personal nature based on his own present understanding of the teachings of
Jesus and upon his individual inquiry into various philosophies of religion" and
that "he believes in a Supreme Being."

Nagler's letter stated in pertinent part:

"In neither of my two appearances before the Local Board did I state that I am
an atheist. At my first encounter I did say that I did not believe in either the
Jewish or the Christian God, but I was as clear as I could be on my conception
of God. I said then unequivocably [sic] that I believe in God, and I pointed out
that the answers to the questions in series II of my SSS Form 150 are quite
clear on this. . . .
"God, to me, is not something which can be clearly defined by words, as can be
the Judeo-Christian God, God is experienced emotionally much more than
rationally. It is the Universe, It is everything that is Good, It is the Ideal, It is
Love, It is Life. . . . At my second appearance before the Local Board, . . . I
remember clearly the events which led up to their writing 'Reg. does not now
call himself an atheist.' One of the members was looking at a paper (which I
assume to have been the minutes of my first appearance) and told me that I call
myself an atheist. I said that I don't. He said that at my first appearance I had
claimed atheism. I replied that I had not said such a thing. He then dictated . . .
words to the effect that I now retract my former statement of atheism. I then
said that I do not retract any statement, that I never made such a statement to
the Local Board. He then dictated . . . words to the effect that I do not
remember making any statement that I was an atheist, and that I do not now call
myself one. I then began to repeat what I had said at the first meeting
concerning my belief in God, but was interrupted. . . .
"The minutes of the second appearance state that I believe in a 'Supreme Being
that does not organize religions but humanists.' I do not remember making this
statement. I do not know what it means. . . ."

After the rejection of his conscientious objector claim by the Appeal Board,
appellant requested an occupational deferment from his Local Board on
October 23, 1967. His request was supported by a letter from his employer, an
Associate Commissioner for Research and Evaluation in the State Education
Department of the University of the State of New York. The Local Board
convened on October 24, reviewed appellant's file, and determined that the new
information did not warrant reopening his classification
Appellant urges that the Local Board's refusal to reopen his classification was
error invalidating his subsequent induction order because he had stated a prima
facie claim for an occupational deferment under 32 C.F.R. Secs. 1622.22(a),
1622.23 (1967). The Government takes issue as to the latter claim. Because of
our disposition of this case on the conscientious objector claim, we need not
resolve this controversy.

United States v. Lenhard, 461 F.2d 1268 (2d Cir. 1972) (on remand); United
States v. Hulsey, 463 F.2d 1071, 1075 (7th Cir. 1972); United States v. Hanson,
460 F.2d 337, 342-343 (8th Cir. 1972)

Appellee's Brief 18

Upon their initial briefing of this appeal, neither side referred to the Supreme
Court's decisions in Lenhard and Joseph, supra, and of course our decisions in
Holby and Stewart had not yet issued

Appellee's Brief 17